Wisconsin Supreme Court Accepts Cases Which May Provide Guidance on McNeely:

The Wisconsin Supreme Court recently accepted two cases which may provide some guidance on the application of the recent US Supreme Court Missouri v. McNeely decision in Wisconsin. The McNeely decision has created some uncertainty in the application of Informed Consent Laws, as the US Supreme Court held that the dissipation of alcohol from one’s blood stream does not provide per se exigency sufficient to overcome the Fourth Amendment’s warrant requirement for non-consensual blood testing. Both of the Wisconsin cases, State v. Tullberg, (2012AP1593, Shawano County) and State v. Kennedy (2012AP523, Milwaukee County) involve motions to suppress warrantless blood draws by defendants charged with homicide by intoxicated use of a motor vehicle.

In Tullberg, the court of appeals determined that the totality of the circumstances supported a finding of exigency with respect to the warrantless blood test. The unpublished decision by the court of appeals in Kennedy however, does not discuss the McNeely decision. Particularly given the fact-intensive analysis common to the probable cause and reasonable suspicion standards, it will be interesting to see whether the Wisconsin Supreme Court provides any general guidance on the exigency issue in either of these two cases. Both cases are currently in the briefing stage.

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